DEONANDAN PRASAD SAHI v. STATE OF BIHAR — 1978 DIGILAW 246 (PAT)

JUDGMENT : Shivanugrah Narain, J. All the petitioners in Criminal Revision no. 98 of 1977 have been convicted under Sections 448 and 143 of the Indian Penal Code (hereinafter referred to as the Penal Code). All of them were further convicted by the trial court under Section 380 of the Penal Code but that conviction has been set aside on appeal. Petitioners 3 to 5 were released under Section 4(1) of the Probation of Offend us Act, 1958 after executing bonds to be of good behaviour for one year. Petitioner nos. 1 and 2 were sentenced to rigorous imprisonment for 8 months each under Section 448 of the Penal Code and to further rigorous imprisonment for four months each under Section 134 of the Penal Code. Both the sentences were ORDER :ed to run concurrently. The petitioner, in Criminal Revision no. 188 of 1977 is the Informant Dr. Das, who has moved this court against the Older of acquittal of the accused in respect of the charges under Section 380 Penal Code; As both the Criminal Revision applications arise out of the same ORDER :of the 5th Additional Sessions Judge, Motihari, both these cases were heard together and this ORDER :will govern them both. 2. The prosecution case; briefly stated, is that the informant Dr. Manindra Chandra Das, a medical practitioner was residing in a portion of a house In Pipra Bazar in the district of' Champaran which he had taken on rent from one Mandal Pd., and accused Deonandan Sahi was residing in the other part of the same. The female members of the family of the Informant Dr. Das were also residing in that very house, but some time before the date of occurrence it is said Dr. Das bad taken another house at the Chowk nearby and on the date of the occurrence only. Dr. Das and his son used to sleep in the other portion of the house; which also contained the dispensary of Dr. Das. The prosecution case, further, is that in the evening of 13.1.69 Dr. Das bad taken another house at the Chowk nearby and on the date of the occurrence only. Dr. Das and his son used to sleep in the other portion of the house; which also contained the dispensary of Dr. Das. The prosecution case, further, is that in the evening of 13.1.69 Dr. Das had gone to his house in chowk Bazar at about 8 P. M., where his female folk were residing, to take his meal and taking advantage of his absence, all the five petitioners came in a body armed with lathis and broke open the lock of his house, occupied and removed various articles of the informant kept there. It is further alleged that the sons of the petitioners went to the aforesaid house, found that accused has occupied their house and had locked the door from inside, and when the sons protested, one of the petitioners asked them to flee away. One of the sons, Malay Kumar Das (P. W. 6) informed Dr. Das (P. W. 2) and then Dr. Das came to his house and found the petitioners there. The petitioners, (sic) The prosecution case further (sic) is turned down his demand that they should vacate the house and then he came and lodged Information at Pipra Police, station at 9.30 P. M. The prosecution case further is that on receipt of the information, Sri Tiwary (P. W. 10), the then officer incharge Pipra police station came to the aforesaid house at 10.30 P.M. found all the rooms locked and was therefore, unable to enter; that later on the locks put on the house were broken and the officer in charge got an inventory made of the articles found there and it was discovered that a large number of articles belonging to Dr. Das were missing. 3. The defence of the petitioners was that the entire prosecution case was false; that portion of the house was in possession of the accused Deonandsn Sahi, Dr. Das, the former tenant having vacated it long before the date of the occurrence, According to the accused, Deonandao Sahi, had purchased the house from two sons of Gaya Babu, the original owners of the house and had come in possession of the entire house after Dr. Das had vacated the same as there was a decree of eviction against him. Das had vacated the same as there was a decree of eviction against him. According to the accused, a false case had been brought against them at the instance of Ganesh Pd. 4. The learned Additional Sessions Judge, who heard the appeal against the convictions and sentences of the accused disbelieved the defence, held that Dr. Das was in possession of the house at the time of the occurrence, that the accused had committed the offence of criminal house trespass by forming an unlawful assembly. He, however, held that “as there is no evidence to show that the stolen articles were recovered from their possession they (the accused) cannot be found guilty of theft." (The words within brackets are mine). He accordingly acquitted the accused under Section 380 of the Penal Code and convicted and sentenced them as stated above. It would be convenient to take up the two cases, Cr. Rev. no 98 of 77 and Criminal Revision no. 188 of 77 separately hereinafter. Criminal Rev. no. 98 of 77. 5. Sri Verma appearing on behalf of the accused petitioners first contended that the conviction under Section 143 of the Penal Code was untenable In law because the finding that accused Deonsndan Sahi was also present at the time of occurrence and had participated in the occurrence Is Illegal and if Deonandan Sahi was excluded the number of persons taking part in the offence would be less than five the minimum number necessary to constitute an unlawful assembly. The aforesaid argument is therefore, founded on the promise that the finding that the accused Deonandan Sahi participated in the occurrence is wrong it is not disputed that there was evidence of participation of Deonandan Sahi in the occurrence. The question whether or not the evidence relating to the participation of Deonandan Sahi in the occurrence was reliable or not is a question of fact and a finding on that point may not ordinarily be interfered with in revision. Sri Verma, however, urged me to go behind the finding on the ground that the name of Deonandan Sahi is absent from the written report of the informant Dr. Das on which the case was instituted. Sri Verma, however, urged me to go behind the finding on the ground that the name of Deonandan Sahi is absent from the written report of the informant Dr. Das on which the case was instituted. It is no doubt true that Deonandan Sahi is not mentioned among the persons named in the First information report as having participated in the occurrence, but while in accepting the prosecution case that Deonandan Sahi had also participated in the occurrence the learned additional Sessions Judge did take into consideration the circumstances that Deonandan Sahi was not named in the first Information report. There is no rule of law that a person, whose name is not mentioned in the first information report cannot be held to have participated in the occurrence. I am therefore, unable to hold that the finding that Deonandan Sahi had also participated in the occurrence is Illegal and fit to be set aside in revision. This contention must, therefore; fail. 6. Sri Verma next contended that the finding of the courts below that the information was in possession of the portion of the house In question on the date of occurrence is vitiated by omission to consider the admission of P. W. 3 that Deonandan Sahi was in possession of the entire house on the date of the occurrence. In my opinion there is no, warrant for this submission. The deposition of P. W. 3. read as a whole does not contain any admission that on the date of the occurrence Deonaridan Sahi was in possession of the entire house and not merely of the portion of which he was admittedly in possession. In examination-in-chief, P. W. 3, categorically stated that though his family had begun residing in the second house taken by Of. Das on rent on the date of the occurrence, Dr. Das was running a dispensary in the portion of the house in question. In cross-examination P. W. 3 deposed as follows:- "Deonandan Sahi is the tenant in a portion of the house since before and these days the entire house is in his possession." Deonandan Pd. Sahi is residing in that house since 14, 15 years. P. W. 3 deposed on 24.1.72 and therefore, when he stated that Deonandan Pd. In cross-examination P. W. 3 deposed as follows:- "Deonandan Sahi is the tenant in a portion of the house since before and these days the entire house is in his possession." Deonandan Pd. Sahi is residing in that house since 14, 15 years. P. W. 3 deposed on 24.1.72 and therefore, when he stated that Deonandan Pd. Sahi was in possession of the entire house at present he deposed to the fact which existed in January; 1972, when he stated that Deonandan was residing In the house since 14, 15 years, In the context it only meant that he was residing in a portion of the house since 14, 15 years. This contention must, therefore, also fail. 7. Sri Verma further urged that even if all the finding of facts arrived at by the court below arc accepted in their entirety, the conviction under Section 448 of the Penal Code is untenable in law in as much as on the facts found it cannot be held to be proved beyond doubt that the accused had the necessary criminal intent. It is pointed out that at the time the accused are alleged to have forcibly entered into the house, neither the informant nor any member of his family was present and therefore, it is argued the accused cannot be credited with any Intention to intimidate or annoy. The intention of the accused in entering the house was, it is urged, neither to Intimidate, insult or annoy nor to commit any offence but to have possession of the house to which they were entitled, because of their purchase of the house from Gaya Babu, the admitted original owner. It is pointed out that the Informant was unable to deny the suggestion that they had purchased the house. In my opinion, this contention is misconceived. It is pointed out that the Informant was unable to deny the suggestion that they had purchased the house. In my opinion, this contention is misconceived. The contention that because the trespass was made In the absence of the person in possession there could be no intent to intimidate, or insult or annoy the person, was rejected by H.R. Khanna, J. (as he then was) in (1) Mata Din Singh Bharum Singh vs. The State (1964 (1) Criminal Law Journal 427) In these words- “There is nothing, however, in Section 441 which requires that the intimidation; insult or annoyance; which is caused to the person in possession of a property as a result of the entry upon that property, should be instantaneous and confined only to the moment of entry and not caused subsequent to the entry. All that the section requires is that the accused should make the entry with the Intention to insult; intimidate or annoy the person in possession and it is immaterial that the actual Intimidation, insult or annoyance is caused not at the time of the entry but subsequently. To bold that criminal trespass implies an instantaneous intimidation, Insult or annoyance upon the entry into possession of a property, would be going not only against the plain language of the section but would also lead to state of lawlessness and highhanded activities. In case the argument advanced on behalf of the petitioner were to be accepted, no person, who has made a clandestine entry into the house of another and whose presence is discovered subsequently, can be convicted for the offence of criminal trespass on the ground that what ever be the annoyance, intimidation or insult caused by the entry it was not caused at the time the entry was actually made, it would also lead to the result that a person can with impugnity enter into possession of a property when eve, the person in possession of the same is away from that property. (5) The above result would lead to an impossible situation & would have the effect of putting a premium on a high handedness. (5) The above result would lead to an impossible situation & would have the effect of putting a premium on a high handedness. Such a view is, however not warranted by the language of the section and, after giving the matter my consideration, I am of the opinion that the mere temporary absence or the person in possession would not make any difference if the other ingredients of the offence of criminal trespass are established." 8. I most respectfully agree. As pointed out by H. R. Khanna, J. (as be then was) his conclusion is also supported by the decisions in (2) Jamuna Das V. Emperor (A. I. R. 1945 Allahabad 26) and (3) Jodha Ram vs. State (A. I. R. 1954 All. 67) on the evidence of witnesses for the prosecution which has been accepted it is clear that the accused broke open the lock, forcibly and had threatened to kill the son of the informant, who had protested subsequently. On these facts, it must be held that they had the intent to Intimidate and to strike terror in the heart of the informant and his supporters. Further merely because by such means they hoped to achieve their objective of dispossessing the informant from the house, it cannot be held that they did not have intent to intimidate or annoy. That is clear from the decision in the Matadin's case (Supra) itself, where it was pointed out that distinction must be kept in view between intention and objective and though the object may have been to take possession of the house his act shows that his Intention was to cause annoyance to the person in possession. A similar view was taken by the Bench of this court in the case of (4) T. H. Bird vs. King Emperor (I. L. R. Patna (13) 1934, 268) in which after a careful and elaborate examination of the matter the contention that because the object of the accused in entering upon the land in possession of the prosecution party was to effect the person in possession, the accused cannot be convicted for criminal trespass even when they had dispossessed the complainant by means of a demonstration intended to intimidate the complainant into giving up possession of the land was rejected. James, J. while rejecting the argument observed as follows :- “We may exclude the so-called rule that a person is to be presumed to intend the natural consequences of his action, and we may require for. Intention some definite act of volition; but we must not confuse intention and motive, or say that a person, because ho bas an ulterior motive; does not intend to do what he actually does for the attainment of that ulterior end." Khwaja Md. Noor, J., who concurred, observed: "Again, if a man enters into a property in possession of another with the intention of taking possession of it, he may or may not have also the intention of doing anyone of the acts specified in Section 441 of the Indian Penal Code for the purpose of obtaining that possession. If he has no such intention the entry will not be criminal trespass but if he has the intention of taking possession by means of force, annoyance or intimidation he is guilty of criminal trespass, whether he had or had not those intentions is, as I have said, a question of fact.... The ultimate object may be the taking of possession of the property which by itself is no offence, but at the same time there was also the Intention of committing intimidation in ORDER :to achieve the object of taking possession and in fact the complainant was Intimidated and force was used to him". 9. In the case before their Lord-ships, the accused had gone with the intention of intimidating the man in possession in ORDER :to achieve the object of taking possession of the property. In this case also, the ultimate object may have been of taking of possession of the house, but at the same time, there was also an Intention of intimidating the informant and his supporters in ORDER :, to achieve the object of taking possession. I may further point out that even assuming that the accused had purchased a portion of the house in; occupation of the petitioner, they had no bonafide claim of possession. Even though a decree for eviction has been passed against the tenant; the landlord has no right to use force to evict him. He has no right to take possession except in accordance with law. Even though a decree for eviction has been passed against the tenant; the landlord has no right to use force to evict him. He has no right to take possession except in accordance with law. It must also be remembered that the decree for eviction had not been obtained by the accused but by Mangal Pd. I am therefore, unable to hold that the accused has any bonafide right to possession of the house. 10. No other contention has been raised. It follows, therefore, that the accused petitioners have been rightly convicted under Sections 143 and 448 of the Penal Code. 11. In my opinion, however, the sentences imposed on the petitioners 1 and 2 are illegal inasmuch as there has been a contravention of the mandatory provisions of Section 361 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code). Section 361 of the new Code requires amongst other things, the court which could have dealt with an accused persons under Section 360 of the new Code or under the provisions of the Probation of Offenders Act 1958, but has not done so, to record in its JUDGMENT :; the special reason for not having clone so. It is welt settled that the provisions regarding recording of special reasons is mandatory and the failure to do so in a case, in which Section 361 applies, vitiates the sentence passed. The criminal trial was pending on 1.4.74 when the new Code came into force and therefore; the trial court had to dispose of in accordance with the provisions of the Code of Criminal Procedure 1898 as if new Code had not come into force. The provisions of Section 361 of the new Code had no application, so far as the ORDER :of the trial court is concerned. In my opinion, however, the appellate court was bound to comply with the provisions of Section 361 of the new Code. The appeal was filed in the year 1976 and, therefore, in view of the provisions of Section 484 of the new Code was governed by the provisions of the new Code, i.e., to say by the provisions of Sections 360 and 361. The appeal was filed in the year 1976 and, therefore, in view of the provisions of Section 484 of the new Code was governed by the provisions of the new Code, i.e., to say by the provisions of Sections 360 and 361. Section 360, so far as it is relevant, runs thus:- “360 (1) When any person not under twenty-one years of age is convicted of an offence punishable, with fine only or with Imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the court before which be is convicted; regard being had to the age, character or antecedents of the offender, and to• the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond; with or without sureties, to appear and receive sentence when caned upon during such period (not exceeding three years) as the court may direct and in the meantime to keep the peace and be of good behaviour. xx xx xx xx (4) An ORDER :under this section may be made by any appellate court of by the High Court or court of Session when exercising Its powers of revision. 12. Prima facie, the appellate court hearing the appeal out of which this revision application arises; could have, in view of the provisions of Sub-section (4) passed an ORDER :under Sub-section (1) of Section 360 of the new Code and, therefore, was a court which could have dealt with the accused persons under Section 360 of the new Code, within the meaning of the expression as used in Section 361 of the new Code. The learned advocate appearing on behalf or the State, however, contended that though Section 360 (4) confers upon the appellate court, the power of passing an ORDER :under Section 360, the exercise of the aforesaid power was limited to cases in which the court, whose ORDER :was under appeal could itself have passed an ORDER :under Section 360 and whereas in this case the trial court could not have passed an ORDER :under Section 360 of the new Code, the appellate court also cannot pass such an ORDER :. Reliance was placed on the general principle that appeal is in the nature of rehearing of the original proceeding and the powers of the appellate court ale the same as the powers of the trial court which has passed the ORDER :under appeal. 13. A similar question regarding the Interpretation of the provisions of the Probation of Offenders Act, 1958, hereinafter called 'the Act'. came up for consideration by the Supreme Court in Rattanlal V. The State of Punjab (A. I. R. 1965 supreme court 444). The appellant before the supreme court in that case was convicted and sentenced under Section 451 of the Penal Code. At the time of his conviction that is to say on May 31, 1962, he was sixteen years old, but provisions of the Probation of Offenders Act, 1958 had not till then been extended to Gurgaon district, where the offence had been committed and therefore, the Magistrate had no power or duty to make any ORDER :under the Act. The appellants appealed. The Act was extended to Gurgaon district on September 1, 1962. The learned additional sessions judge disposed of the appeal thereafter without complying with the provisions of Section 6 of the Act, which had by then come Into force. The appellants appealed. The Act was extended to Gurgaon district on September 1, 1962. The learned additional sessions judge disposed of the appeal thereafter without complying with the provisions of Section 6 of the Act, which had by then come Into force. Sections 3 and 4 of the Probation of Offenders Act; 1958 contain provisions substantially similar to the provisions of Section 360 of the new Code, Section 6 of the Act runs thus:- "(1) Any person under twentyone years of age is round guilty of having committed an offence punishable with Imprisonment (but not with the imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that; having regard to the circumstances of the case Including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4 if the court passes any sentence of imprisonment on the offender; it shall record its reasons for doing so. (2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to In Sub-section (1) the court shall call for a report from the probation officer and consider the report, if any and any other information available to it relating to the character and physical and mental condition of the offender." Section 11(1) of the Act provides- "Notwithstanding anything contained in the Code or any other law an older under this Act may be made by any court empowered to try and sentence the offender to Imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision." The question for decision In that case which was raised for the first time In the appeal by special leave to the supreme court was whether the appellate court had jurisdiction to exercise its power under Section 6 of the Probation of Offenders Act 1958 In respect of an accused, who was convicted by the trial court before the Act had come into force. The Supreme Court answered that question in the affirmative and, construed Section 11 of the Probation of Offenders Act 1958 thus- "The Sub-section ex-facie does not circumscribe the jurisdiction of an appellate court to make an ORDER :under the Act only in a case where the trial court could have made that ORDER :. The phraseology used therein is wide enough to enable the appellate court of the High Court, when the case comes before it, to make such an ORDER :, as the Act was made to Implement a social reforms. As the Act does not change the quantum of the sentence, but only introduces a provision to reform the offender, there is no reason why the legislature should have prohibited the exercise of such a power, even if the case was pending against the accused at one stage or other in the hierarchy of tribunals." 14. It cannot be disputed, and it has not been disputed by the learned advocate for the State, that the provisions of Section 360 of the new Code are in paramateria with the provisions of Sections 3, 4 and 11 of the Act and in particular that Subsection 4 of Section 360 of the new Code is in paramateria with Section 11 of the Act. On a parity of reasoning therefore; it must be held that Sub-section (4) of Section 360 empowers the appellate court to make an ORDER :under Section 360 in respect of an accused who was convicted by the trial court before Section 360 of the new Code came into force. The appellate court in the present instance was, therefore, a court which could have dealt with the accused under Section 360 of the new Act and therefore, the sentences imposed are Illegal, for admittedly the appellate court has not recorded any reason for not dealing with the accused under the provisions of Section 360 of the new Act or the Probation of Offenders Act 1958. Therefore, though the ORDER :of conviction must be confirmed, the ORDER :sentencing the accused petitioners must be set aside, and the case remanded to the appellate court for fresh decision on the question or sentence after complying with the provisions of Sections 360 and 361 of the New Code. Criminal Revision no. 188/77 15. Therefore, though the ORDER :of conviction must be confirmed, the ORDER :sentencing the accused petitioners must be set aside, and the case remanded to the appellate court for fresh decision on the question or sentence after complying with the provisions of Sections 360 and 361 of the New Code. Criminal Revision no. 188/77 15. It is urged on behalf of the informant petitioners that the appellate court erred in law in acquitting the petitioners merely because there was no evidence to show that the stolen articles were recovered from their possession. It is further urged that recovery of the stolen articles from the possession of the accused Is not an essential ingredient of an offence of theft and that in a case, in which the evidence of the prosecution witnesses had been accepted and where the evidence showed that the accused has removed the articles from the possession of the informant's house, the acquittal was erroenous in law. The principles governing the exercise of the powers of the High Court to set aside any acquittal in exercise of its revisional jurisdiction at the instance of the private complainant accused an ORDER :of acquittal against which the Government has a right to appeal are well settled. In (5) D. Stemphens V. Nosibolla (A. I. R. 1951 Supreme Court 196) Chandra shekhara Aiyar, J. speaking for the Supreme Court laid down:- “The revisional jurisdiction conferred on the H. C. under Section 439, Criminal Procedure Code is not to be lightly exercised, when it is invoked by a private complainant against an ORDER :of acquittal; against which the Govt. has a right of appeal under Section 417. It could be exercised only is exceptional case where the Interest of public justice requires interference for the correction of a manifest Illegality, or the prevention or a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record.'' It is, therefore, clear that the ORDER :of acquittal may not be set aside by this court in exercise of its revisional jurisdiction, merely because the learned Magistrate has committed an error of law. It can be exercised only if “the Interest of public justice requires interference." 16. It can be exercised only if “the Interest of public justice requires interference." 16. Thus, even if it is held that in setting aside the ORDER :of conviction the appellate court committed an error of law, this court must refuse to interfere unless it is of the opinion that the interest of public justice requires interference. Now In the present case, though there is evidence of removal of articles; obviously belonging to the informant, from the portion of the house occupied by him, there is no clear and definite evidence regarding the specific articles stolen away or then value. The informant deposed that he had given a list of the articles to the investigating officer and. thereafter, stated that after the officer incharge along with B. D. O. of Chakia went and opened the rooms and prepared inventory of the articles, he made over, to him the furniture kept in the house and nothing else. Apparently, he meant that except the furniture the other articles kept there were stolen away. He has not specified however, what were the articles which were stolen away, though at one place in his evidence the value of the articles is mentioned as Rs. 1500. It appears, the prosecution relied upon the description of the articles contained in the list (Exhibit 7). But the list, which is presumably the list of articles kept in the room, was admittedly given to the Investigating officer (P. W. 10) not at the time of the handing over the written repot on which the case was Instituted but subsequent to the commencement of the investigation and the inspection of the place of occurrence by the investigating Officer. The description of the articles contained in the list, therefore, amounts to a statement made to the police In the course of investigation and in view of the provisions of Section 162 of the Code of Criminal Procedure is inadmissible. Therefore, as I said earlier, there is no specific evidence about the articles, which had been stolen away. 17. It must also be remembered that the offence of theft, if any; committed by the accused persons in the present case, is not one of professional theft. The objective of these accused was to forcibly take possession of the house and the removal of the articles was ancillary and subsidiary to that objective. 17. It must also be remembered that the offence of theft, if any; committed by the accused persons in the present case, is not one of professional theft. The objective of these accused was to forcibly take possession of the house and the removal of the articles was ancillary and subsidiary to that objective. Though there conduct might amount to technically theft, it was not a theft which would or should attract very severe punishment. It must also be borne in mind that the convictions of these accused persons for offences under Section 143 and 448 of the Penal Code have been affirmed. These accused, therefore, unless they are dealt with in accordance with the provisions of Section 360 of the new Code or of the Probation of Offenders Act, 1958 would be punished for the offences under Section 143 and 448 of the Penal Code. Even if they were convicted or sentenced under Section 380 of the Penal Code, regard being had to the aforesaid facts and circumstances, the sentence under Section 380 of the Penal Code is not likely to be more than the sentence that would be Imposed for the offence under Section 143 and 448 of the Penal Code and in all probability would be directed to run concurrently. Three of the petitioners have already been dealt with under the provisions of the Probation of Offenders Act. In these circumstances, I do not think that there will be any grave miscarriage of justice, if the petitioners' acquittal for the offence under Section 380 Penal Code is not set aside and they be not directed to be retried for that offence. I am conscious that this court can, as held by the Supreme Court in Chinnaswamy vs. State of Andhra Pradesh (AIR 1962 Supreme Court 1788), while setting aside the, ORDER :of acquittal instead of directing a re-trial by the trial court, remand the case to the appellate court for re-healing of the appeal. Even then, in my opinion, as the accused can be sufficiently punished for the offence in respect of which they have been convicted, there would be no miscarriage of justice if the ORDER :of acquittal is allowed to stand. I am therefore, of the opinion that even assuming that the ORDER :of the acquittal is erroneous in law, the interests of public justice do not demand interference with the ORDER :of acquittal. I am therefore, of the opinion that even assuming that the ORDER :of the acquittal is erroneous in law, the interests of public justice do not demand interference with the ORDER :of acquittal. Interference in revision is discretionary much more so in case of an ORDER :of acquittal. Therefore, even assuming the ORDER :of the acquittal under Section 380 Indian Penal Code is erroneous in law, I do not think it is a fit case in which I should interfere with the ORDER :of acquittal in the exercise of revisional jurisdiction at the instance of the private complainant in a case, in which the State could have; but has not chosen to appeal. I would; accordingly dismiss Criminal Revision no. 188 of 1977. 18. In the result, Criminal Revision no. 188/77 is dismissed, Criminal Revision no. 98 of 77 is allowed in part and while the convictions of the petitioners in Criminal Revision no. 98 of 77 are affirmed, the sentences imposed are set aside and the case is remanded to the appellate court for passing an appropriate sentence if any, after complying with the provisions of Section 361 of the new Code. If the appellate court is of the opinion that these petitioners should be dealt with under Section 360 of the new Code or of the Probation of Offenders Act 1958, it shall direct that they he so dealt with. If however, it is of the opinion that they should not be so dealt with; it shall record its reasons for that opinion and then proceed to pass the appropriate sentences. Cr. Rev. 98/77 remanded for proper sentence. Cr. Rev. 188/77 dismissed.